The Supreme Court is about to decide its most consequential case this term

This week, the Supreme Court heard oral argument in CIC Services, LLC v. Internal Revenue Service — a case that has largely flown under the radar but may be one of the most consequential cases of the term. In this case, the Supreme Court will decide whether an individual may be required to violate the law in order to challenge a regulatory requirement.

The answer to that question should be obvious. Ordinarily, people are allowed to challenge a law before putting themselves in peril. And under the statute that governs review of administrative agency action, the Administrative Procedure Act, pre-enforcement review is the norm. Thus, the Supreme Court has long recognized that there is a presumption that a person is entitled to review before they are forced to violate the law.

A 2004 law that requires taxpayers and their accountants to report certain transactions to the IRS is at the center of CIC Services. Accountants who fail to comply face stiff monetary penalties and possible prison time. The plaintiff in the case is a tax preparation firm that argues that the IRS failed to follow proper procedures in determining which transitions are reportable under the 2004 law. According to CIC Services, the IRS was required to seek input from the regulated community and undertake notice and comment rule-making rather than merely publishing a notice.

The IRS, not surprisingly, disagrees and argues that CIC Services may not challenge those procedures unless it first violates the law and incurs a tax penalty. For such an absurd result, the IRS points to a Civil War-era statute known as the Anti-Injunction Act.

Until the 1850s, the government was financed by tariffs. Facing substantial debt due to the Civil War, Congress enacted its first income tax in 1861. When lawsuits threatened the government’s ability to collect taxes, Congress passed the Anti-Injunction Act. That 1867 statute prevents lawsuits from “restraining the assessment or collection of any tax.” The law thus generally requires a plaintiff first to pay a tax and then sue for a refund.

While this statutory regime makes sense when the plaintiff is challenging a tax payment, it makes zero sense when the plaintiff is challenging a regulatory requirement like the one at issue in CIC Services.

The IRS today regulates large portions of everyday life through regulation. As Justice Neil Gorsuch noted at oral argument, the IRS oversees enormous swaths of our economy, regulating everything from healthcare to child care to charity and the environment. The agency administers many of Congress’s most far-reaching laws, such as ERISA and the Affordable Care Act. Further, research has shown that the IRS “has a poor track record of complying with the basic rules of administrative law” — like the notice and comment procedures at issue in CIC Services.

This case should be clear under Direct Marketing Association v. Brohl, a case involving Colorado’s sales and use tax. In that case, the Supreme Court held that a constitutional challenge to a reporting requirement could go forward because it occurred prior in time to tax collection and thus did not restrain the collection of a tax within the meaning of the Anti-Injunction Act.

The IRS argues that because the penalty imposed by this particular reporting requirement is contained within the tax code, the Anti-Injunction Act applies and prohibits pre-enforcement review.

These breathtakingly broad positions would, essentially, insulate the agency from any pre-enforcement review. As Justice Samuel Alito pointed out at oral argument, under the IRS’s view, a taxpayer may not get a review of the IRS’s reporting requirements without committing a crime. Judge Amul Thapar pointed out the absurdity of this view in his dissent from the Sixth Circuit’s denial of en banc review below, “In this country, people should not have to risk prison time in order to challenge the lawfulness of government action.”

Indeed. The Founders well understood that “the power to tax involves the power to destroy” and accordingly granted the taxing power only to Congress. Yet today, the IRS, an executive agency, wields the power to tax with ever-expanding frequency. It now claims the ability to evade review unless and until individuals are willing to violate the law and risk prison time.

The Supreme Court should clearly hold that regulatory requirements, even those enforced by a penalty imposed by the tax code, do not implicate the Anti-Injunction Act and are subject to the pre-enforcement challenge. Our freedoms depend upon it.